Report and Recommendations - Scottish Government

legitimated fact-finding and adjudication by public officials, judges.The great and ultimately self-defeating safeguards of the Roman-canonlaw of proof were concessions made in order to implement this radicalreorganisation of criminal procedure. By forbidding judges to drawinferences of guilt from circumstantial evidence and by limiting thejudges’ power of condemnation to cases where there were twoeyewitness or confession, the medieval law laid claim to certainty.Because the law of proof made judgment rest upon certainty, therewould be less objection that mere mortals were displacing God fromthe judgment seat”.Development – Towards Flexibility7.1.12 In continental Europe, where the requirement for corroboration remained inplace for centuries, practical considerations dictated that there developed asystem whereby half proofs, such as one eye witness or circumstantialevidence, would entitle the judge to order the suspect to be tortured. Thatmight produce a confession 33 ; the truth of which could be objectivelydetermined 34 and which sufficed on its own under the original formulation ofthe requirement but which, under this scheme, would be combined with othertestimony. But it appears that some persons were not inclined to admit guilteven under torture. The law therefore progressed whereby these half proofswould be enough to merit punishments short of death or other serious bodilyimpairment.7.1.13 The law in Scotland initially developed along similar lines. Thus, despite thegeneral statement in Mackenzie 35 , Hume describes cases in the early part ofthe 18th century where evidence was accepted as sufficient to justify lesser33 Constitutio Criminalis Carolina (1532) Article 22, referred to in Langbein (supra) p 4934 i.e. special knowledge35 supra see para 7.1.1247